No Pari Materia Provisions Equivalent To Section 377 IPC Incorporated In BNS: Kerala HC Notes While Disposing A Man's Plea To Quash Criminal Case Filed By His Wife
The Kerala High Court noted that no pari materia provisions equivalent to Section 377 of the Indian Penal Code (IPC) are incorporated in Bharatiya Nyaya Sanhita (BNS).
The Court was deciding a criminal miscellaneous case filed under Section 482 of the Criminal Procedure Code (CrPC) seeking to quash proceedings.
A Single Bench of Justice A. Badharudeen said, “It is relevant to note in the new criminal procedure law, viz., Bharatiya Nyaya Sanhita (hereinafter referred to ‘BNS’ for short), no pari materia provisions equivalent to Section 377 of IPC is incorporated. The rationale behind this omission is not stated in BNS. But it is perceivable that almost all forms of sexual overtures/assaults against minors aged below 18 years (both male and female) are covered by the provisions of the Protection of Children from Sexual Offences Act, apart from pari materia provisions equivalent to Section 375 of IPC incorporated in Sections 63 to 69 of the BNS. Holding so, cognizance taken by the learned Magistrate for the said offence found to be unsustainable.”
Advocate Rameez Nooh represented the petitioner while Public Prosecutor M.P. Prasanth represented the respondents.
In this case, a crime was registered in 2021 on the allegation that the petitioner/accused committed offences punishable under Sections 377 and 498A of the IPC. The complainant lodged protest complaint and while proceeding with the same, the Magistrate recorded the statements of the complainant as well as four other witnesses. Thereafter, cognizance was taken for the offences punishable under Sections 377 and 498A IPC. Hence, the accused preferred the petition before the High Court to quash the entire proceedings against him.
The High Court in the above regard observed, “Coming to the first question, as to whether offence under Section 377 of IPC would attract in the facts of this particular case, it has to be held that going by the definition of rape under Section 377 of IPC, as held by this Court in Vinod Thankarajan’s case (supra), oral sex, if any, committed by a male accused on a female victim, after the amendment came with effect from 03.02.2013 is offence of rape. Explanation (2) of Section 375 of IPC provides that sexual intercourse or sexual acts by a man with his own wife, and the wife not being under fifteen years of age, is not rape. Here the defacto complainant is a lady attained majority.”
The Court added that the allegation of commission of offence punishable under Section 377 of IPC by the husband against the wife would not stand in the eye of law.
“Coming to the ingredients to attract the offence under Section 498A of IPC, the same are well settled. Providing a new dimension to the concept of ‘cruelty’, clause (a) of Explanation to S.498A IPC postulates that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute ‘cruelty’. Such wilful conduct, which is likely to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman would also amount to ‘cruelty’, it said.
The Court further noted that the allegations to constitute commission of offence punishable under Section 498A of IPC is made out, and the allegations are not general, sweeping, and omnibus. Therefore, it concluded that the petition seeking quashment of the entire proceedings could not succeed in full.
Accordingly, the High Court partly allowed the petition, quashed the proceedings under Section 377 IPC, and allowed the trial to continue for the offence under Section 498A IPC.
Cause Title- Sayyid Imbichi Koya Thangal @ Bayar Thangal v. State of Kerala & Anr. (Neutral Citation: 2024:KER:61181)
Appearance:
Petitioner: Advocates Rameez Nooh, Ronit Zachariah, Badir Sadique, Fathima K., P. Rafthas, and K.N. Muhammed Thanveer.
Respondents: PP M.P. Prasanth and Advocate K.M. Sathyanatha Menon.
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